Govt limits surrogacy to ‘infertile married Indian couples’

New Delhi: The Centre has informed the Supreme Court that it was opposed to “commercial surrogacy” and was in the process of enacting a law to make it a punishable offence.

“The government does not support the commercial surrogacy and it would be limited to Indian married infertile couples only and not to foreigners,” the union government said in an affidavit on Wednesday.

The Centre told the court that only altruistic surrogacy to the needy infertile married Indian couple would be provided after their needs were assessed and found to be genuine.

The affidavit was filed after an apex court bench of Justice Ranjan Gogoi and Justice N V Ramana earlier in the morning adjourned the hearing after taking exception to the government position being reported by the media even before the court heard of it.

The court directed the matter to be listed on November 24.

The court was also told that the government was in the process of bringing a comprehensive legal framework for not only protecting the rights of the surrogate mother but also for prohibiting and penalising commercial surrogacy.

The Centre said an appropriate state authority would be set up under the proposed Assisted Reproductive Techniques (Regulation) Bill, 2014, to ascertain the genuineness of the need of infertile married Indian couples to have children.

This was stated by Dr Soumya Swaminathan, secretary, department of health research, ministry of health and family welfare, in response to a number of questions raised by the court in its October 14 order.

The questions pertained to the government stand on commercial surrogacy, status of the surrogate mother, pain and sufferings of the surrogate mother for nine months, risk and psychological and emotional problems, and the mother of the surrogate child.

Responding to a question posed by the apex court, the central government said the “import of the human embryo is prohibited except for research purposes based on the guidelines of the department of health research”.

The Centre’s affidavit also said that provision would be incorporated in law to penalise the commissioning couples who failed to take the custody of a child with disabilities born from a surrogate mother.

In a historic verdict, the Supreme Court on Thursday decriminalised homosexuality between consenting adults by declaring Section 377, the penal provision which criminalised gay sex, as “manifestly arbitrary”.

The bench said it is no longer an offence for LGBTIQ (lesbian, gay, bisexual, transgender/transsexual, intersex and queer/questioning) community to engage in consensual sex between two adults in private.

Reading out the judgment, Chief Justice Misra said attitudes and mentality have to change to accept others’ identity and accept what they are, and not what they should be.

LGBTIQ people have a right to live unshackled from the shadow.Pixabay

“It is the constitutional and not social morality which will prevail,” said the court.

The verdict sparked celebrations in the LGBTIQ community across India even as the judgment was being read out. Many of the community members who had assembled outside the apex court jumped in joy and distributed sweets.

Chief Justice Misra said consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice.

Section 377 will not apply to consensual same-sex acts between homosexuals, heterosexuals, lesbians, the court said, clarifying that sexual act without consent and bestiality will continue to be an offence under section 377.

“An individual has full liberty over his or her body and his or her sexual orientation is a matter of one’s choice,” said the Chief Justice.

“Time to bid adieu to prejudicial perceptions deeply ingrained in social mindset. Time to empower LGBTIQ community against discrimination. They should be allowed to make their choices,” he added.

In separate but unanimous verdicts, a five-judge Constitution Bench struck down Section 377 of the Indian Penal Code (IPC) as unconstitutional. Pixabay

In a concurring judgement, Justice Nariman said homosexuality is “not a mental disorder or disease”.

He said the LGBTIQ community has an equal right to live with dignity and are entitled to equal protection of law. He directed the Centre to give wide publicity to this judgment to remove the stigma attached to homosexuality.

Justice Chandrachud said to deny the LGBTIQ community their right to sexual orientation is a denial of their citizenship and a violation of their privacy.

“They cannot be pushed into obscurity by an oppressive colonial legislation… Sexual minorities in India have lived in fear, hiding as second class citizens,” said Justice Chandrachud, adding “the state has no business to intrude on such matters”.

Justice Indu Malhotra said that history owes an apology to the LGBTIQ community for all that they have suffered on account of the ignorance of the majority about homosexuality.

“LGBTIQ people have a right to live unshackled from the shadow,” she said.

People Participated in Hundreds for the Gay Pride Parade Held In Delhi.

The Supreme Court verdict, which overruled its own earlier judgment, assumes significance as in the earlier round of litigation in 2013, the top court had reversed a Delhi High Court ruling decriminalising homosexuality.

The Delhi High Court bench, headed by then Chief Justice A.P. Shah, had in July 2009 legalised homosexual acts between consenting adults by overturning the 149-year-old law — finding it unconstitutional and a hurdle in the fight against HIV/AIDS.

In December 2013, a Supreme Court bench comprising Justice G.S. Singhvi and Justice S.J. Mukhopadhaya in the Suresh Kumar Koushal and another vs Naz Foundation and others case, had set aside the high court’s judgment and said that it was for the legislature to look into desirability of deleting section 377 of IPC.

The matter was subsequently resurrected in July 2016, when a fresh petition was filed by members of the LGBTIQ community — dancer N.S. Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur — which was then marked to the Constitution Bench by a Division Bench.

The reference was made on the basis of submission that it was the first time that individuals directly affected by the provision were approaching the court.

Among the petitioners are a batch of current and former students of Indian Institutes of Technology. Claiming to represent more than 350 LGBTIQ alumni, students, staff and faculty from the IITs, the petitioners said that the existence of Section 377 had caused them “mental trauma and illnesses, such as clinical depression and anxiety and relegated some of them to second-class citizenship”. (IANS)